Holt v. State

• Decision Date: 18 October 1909
• Citation: 121 S.W. 1072,91 Ark. 576
• Parties: HOLT v. STATE
• Court: Arkansas Supreme Court

121 S.W. 1072

91 Ark. 576

HOLT v. STATE

Supreme Court of Arkansas

October 18, 1909

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Appellant pro se.

1. It was error to permit either Todhunter or Boaz to testify as to the confession made, as they were not voluntary but extorted. 66 Ark. 53; 50 Id. 305; 22 Id. 336; 11 Id. 408; 69 Id. 599-602; 3 Enc. Ev., pp 301-2-3. Confession must be voluntary and without restraint coercion or influence of any kind. The question of admissibility often turns upon the question whether they were made to one having official authority, or sustaining some confidential relation as spiritual adviser, or having control over or power to punish. 25 Ala. 9; 69 Id. 159; 2 Col. 186; 113 Ga. 1039; 80 Ky. 468; 11 Tex.App. 364; 14 N.Y. 384; 35 Tex. Cr. App. 360; 13 S.W. 865; 1 Bish. Cr. Pr. 1227; 3 A. & E. Enc. L. 457-8-9; 1 Greenl. Ev. 220.

2. It was error to dismiss the sheriff and deputy and allow a bystander to summon a jury.

3. The court erred in its charge to the jury.

Hal L. Norwood, Attorney General, C. A. Cunningham, Assistant, for appellee.

1. There is nothing is the testimony of Boaz and Todhunter that would render the confession of defendant inadmissible. 28 Ark. 121; Ib. 521; 35 Ark. 35; 50 Id. 501. But if they were not harmful nor prejudicial. 73 Ark. 407; 76 Id. 276; 77 Id. 453.

2. Error in admitting improper testimony is cured when the court withdraws it from the jury. 60 Ark. 45. The presumption is that the verdict is based on competent evidence only. 43 Ark. 99. Juries should be credited with at least ordinary intelligence. 66 Ark. 16.

3. Defendant had not exhausted his peremptory challenges, and he cannot complain of the juror Bob Curtis. 72 Ark. 613; 19 Id. 156; 30 Id. 328; 50 Ark. 494; 69 Id. 322; 71 Id. 86.

4. The denunciation of defendant in argument, under the proof, was very proper and appropriate. 72 Ark. 613; 74 Id. 489. If error, it was harmless. 72 Ark. 613; 73 Ark. 148.

OPINION

WOOD, J.

Appellant appeals from a judgment of the Washington Circuit Court convicting him of the crime of murder in the second degree. He was indicted for murder in the first degree. The indictment was in apt language, and correctly charged the offense. The evidence for the State tended to show that appellant on the 6th day of September, 1908, shot and killed one J. W. Murry from ambush. It was shown that Murry a few weeks prior to the killing had accused appellant of stealing watermelons, had cursed appellant, calling him vile names, and had threatened to kill appellant; that this abuse filled appellant with rancor, which on the day of the killing caused him to say that he was going to "get his gun and make him take it back or kill him." There were circumstances tending to show that appellant while lying in wait killed Murry as he passed along the highway. Such was the theory of the State.

On the other hand, there was evidence tending to prove that appellant met Murry in the public road, and requested him to retract the abusive language he had formerly used toward appellant; that he refused to do so, but made a motion as if to draw a weapon, whereupon appellant shot and killed him instantly. The jury passed upon the conflicting theories to be deduced from the evidence, and it suffices to say that a verdict for murder, even in the first degree, would not have been disturbed by this court. There was some evidence to justify the court in submitting to the jury the question as to whether appellant was seen at the time he fired the fatal shot, and this the court did in proper instructions. There was no evidence to warrant the court in submitting the question as to whether appellant was acting under an insane delusion in taking the life of Murry. There is no proof of delusional insanity in the record, and the trial court properly rejected prayers for appellant seeking to have such issue presented.

Bob Curtis, a talesman, stated on his voire dire that he had a "fixed opinion" as to the defendant's guilt formed from reading newspaper articles and talking with persons who purported to give the facts in the case. The court over the objection of appellant held that Curtis was a qualified juror. The appellant excepted to the ruling, and peremptorily challenged the juror.

Conceding that the answers of the juror prima facie rendered him incompetent, and that, in the absence of further examination into his competency, the court should have excused him for cause, still there is no showing in the record that appellant had exhausted his peremptory challenges. It does not appear, therefore, that appellant was prejudiced by the ruling of the court. It does not appear that by the ruling of the court appellant was compelled to accept some juror that was unsatisfactory to him. The appellant, not having exhausted his peremptory challenges, waived any error the court may have committed in not excusing the juror for cause. York v. State, post p. 582; Glenn v. State, 71 Ark. 86, 71 S.W. 254; Caldwell v. State, 69 Ark. 322, 63 S.W. 59.

Counsel for the State denounced the defendant in argument as an "assassin and cold-blooded murderer." The language, at most, could only have been accepted by the jury as the opinion of the zealous prosecutor from his viewpoint of the evidence. The jury had heard all the evidence, and they were sworn to form their opinion from the evidence and the law applicable thereto. It is not probable that a sensible jury would mistake the denunciation of zealous counsel for proof in the case, and be misled thereby to appellant's prejudice. Such arguments are in bad form, but it is not error to permit them, especially under facts and circumstances such as are detailed in this record. Kansas City S. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428. From the standpoint of the State, such opinions as the prosecutor expressed were reasonable and legitimate deductions, to be drawn from the evidence.

The court permitted witness Carson, the deputy sheriff and jailer, to give his opinion as to the sanity of appellant while he was in jail, where no foundation had been laid for such opinion. But the court cured any error in this by instructing the jury not to consider such opinion in making up their verdict. Carr v. State, 43 Ark. 99; Johnson v. State, 60 Ark. 45, 28 S.W. 792.

It may be conceded that the confession of appellant, made to the deputy sheriff Todhunter and constable Boaz after they had taken him into custody, was, under the circumstances detailed by them, not a voluntary confession, and that therefore the court erred in permitting evidence of such confession to go to the jury. But we see nothing in the confession, as shown by the testimony of these witnesses, that was prejudicial to appellant. The deputy sheriff, after taking appellant into custody, told him that "it looked like there was a pretty hard case against him." To this appellant replied, "Charley Buck shot a man and got off with five years, and got off with about five months." Appellant urges that this "testimony tended to create in the minds of the jury a belief that this appellant thought lightly of human life, and believed that he could kill a man and get off with a few months as Buck had done." But the testimony could not reasonably have so impressed the jury. For it was but the expression of a hope on the part of appellant that, although his case might seem to the deputy...